V GIRIAPPA SETTY Vs. MUNI BOYEE

JUDGEMENT

(1.) The petitioner in this revision, petition is the plaintiff. He tiled the suit (OS. 157 of 1965) in the Court of the Munsiff, KGF, out of which this revision petition arises for recovery of certain amount due to him. The suit was decreed ex perte on 15-12-1966. That decree was set aside in Mis..No.13 ot 1970 and the suit was restored. The defendant tiled his written statement contending inter alia that the suit was not maintainable on the ground that it was barred by tune in view of the Karnataka Agricultural Debtors Relief Act 1966, hereinafter referred to as the 'Act of 1960, which came into force in the year 1969. A preliminary issue was raised, namely, whether the suit was maintainable' On this issue the Court below held that as the Karnataka Agriculturists Relief Act 1928, hereinafter referred to as the 'Act of 1928' being repealed by the Act of 1966 and as the latter Act was struck down by this Court in Thippeeswamy v. State of Mysore, (1970) 1 MysLJ. 43, as unconstitutional the Act of 1938 was not revived and the plaintiff therefore couid not have the benefit of S. 24 of the Act of 1928 In that view held that the suit was barred by limitation and hence dismissed the same. At the time the plaintiff filed the suit the Act of 1928 was in force and under S.24 of that Act a suit could have been brought under the extended period of limitation, namely, six years.

(2.) It is contended that the Act of 1966 repealed the Act of 1928 and that was struck down with the result there is no repeal of the Act of 1928 and the provisions of that Act are in operation and therefore the Court below was not justified in dismissing the suit. In support of this contention, reliance is placed on the decision in Venkatappa v. Venkatshaaiah, (1971) 2 MysLJ 348. In that case, following the principle laid down by the Supreme Court in Mulchand Odhavji v. Rajkot Borough Municipality, AIR. 1970 SC. 685, and a Division Bench decision of this Court in Gopala Setty v. Channarayapatna Town Municipality, (1970) 1 MysLJ. 278, it was held that the effect of the Karnataka Agricultural Debtors Relief Act 1966 (Act of 1966) being declared unconstitutional and struck down in Thippeswamy's ease(1) was that there wa5 no Act by which the provisions of the pre-existing laws, i.e. Act of 1928, have been repealed and that there was no question of the earlier Act being revived when there was no repeal of that Act at all. In that decision it was also pointed out that the view taken in Rangaswamy v. Shah Krishnaji Vaiaji & Co, (1971) 1 MysLJ. 350, was not in accordance with the principle laid down in the said two cases. As there was conflict of opinion on this point, the matter came up before a Division Bench of this Court in Rudre Gowda v. Angadi Chikkanna, (1972) 1 MysLJ. 310. The Division Bench ruled that the decision of this Court in Thippeswamy's case(1) that the Act of 1966 was unconstitutional, had not the effect off reviving the. Act of 1928, which was one of the Acts repealed by S.64(2) of that Act. This decision, in my opinion, is not in accordance with the principles laid down by the Supreme Court in Mohd Shaukat Hussain Khan v. State of Andhra Pradesh, AIR. 1974 SC. 1480. In that case the facts were these: Under the Hyderabad Abolition of inams Act (8 of 1955) the Government of Hyderabad abolished the inams and the inams vested in the Govt. In accordance with that, the Govt discontinued payment of 'Baithak' of Sendhi shops and tree tax under the wrong impression that the Hyderabad Abolition of Inams Act (8 of 1955) prohibited any such payment. On April 20, 1956 thei Abolition Act was amended by Act 10 of 1956, by which the provisions relating to payment of compensation were superseded while those relating to vesting continued in force. The Govt. therefore, issued a circular to the effect that all the amounts collected as land revenue from the erstwhile inam lands were to be kept in a suspense account. The Hyderabad Act 8 of 1955 as amended by Act 10 of 1956 was repealed by the Andhra Pradesh (Telengana Area) Abolition of Inams Act (9 of 1967), repealing the earlier Act 8 of 1955. The Andhra Pradesh High Court struck down Act 9 of 1967. The question for consideration was whether the Act 8 of 1955 as amended by Act 10 of 1956 continued to exist although the repealing Act 9 of 1967 was struck down by the Andhra Pradesh High Court. Dealing with that question, the Supreme Court held that whax the High Court of Andhra Pradesh implied by declaring Act 9 of 1967 void was that it was non est, and further held that the provisions of Act 8 of 1955 as amended by Act 10 of 1956 could not be said to have been repealed at all and therefore they were in -existence. In view of this decision, the decision in Rudre Gowda's case (6) is not in accordance with law and the Act of 1928 is in existence. Therefore, the learned Munsiff was not justified in dismissing the suit.

(3.) In the result, I allow this revision petition, set aside the impugned order and remit the case to the Munsiff, with a direction to take the case on his file and dispose of the same in accordance with law. No costs.